ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE

ROBERT
W. SCHROEDER III UNITED STATES DISTRICT JUDGE

The
above-entitled and numbered civil action was referred to
United States Magistrate Judge John D. Love pursuant to 28
U.S.C. § 636. On July 28, 2017, the Magistrate Judge
issued a Report and Recommendation (the “Report”)
(Docket No. 97) recommending that Defendant Nook Digital,
LLC's (“Nook Digital”) Motion to Dismiss, or
in the Alternative, Transfer (Docket No. 86) be granted.

In his
Report, the Magistrate Judge recommends that Nook
Digital's motion to dismiss for improper venue be granted
because Blue Spike failed to rebut Nook Digital's
assertions that it lacks a regular and established place of
business in this District. Docket No. 97 at 7. The Report
notes that, instead, each of Blue Spike's arguments as to
why venue against Nook Digital is proper relates to its
parent company Barnes & Noble, Inc.'s
activities in the District, and not to Nook
Digital's activities. Id. at 5 (emphasis
added). The Magistrate Judge found that, “beyond noting
that Barnes & Noble, Inc. is Nook Digital's corporate
parent, Blue Spike does not make any sort of legal argument
about the nature of the relationship between Nook Digital and
Barnes & Noble, Inc.” such that venue in this
District would be proper for Nook Digital. Id. at
5-6.

Blue
Spike objects to the Report on four grounds: (1) venue is
proper over Nook Digital, (2) Nook Digital made
misrepresentations to Blue Spike resulting in an improper
dismissal of Barnes & Noble, Inc., (3) Nook Digital
waived its rights to oppose venue, and (4) pending
multi-district litigation weighs in favor of denying Nook
Digital's motion to dismiss. See Docket No. 100.
Though Blue Spike repeats many of the same arguments already
considered by the Magistrate Judge, the Court addresses each
objection in turn.

Blue
Spike first argues that venue is proper in this District
because the accused devices are sold exclusively by Nook
Digital's parent company Barnes & Noble, Inc. Docket
No. 100 at 2. Blue Spike also presents new evidence in
support of its assertion that Nook Digital is “directed
and controlled by Barnes & Noble and shares corporate
directors.” Id. at 3. Blue Spike cites to
public statements made by Barnes & Noble's Chief
Digital Officer, Fred Argir, which indicate that he has
overlapping responsibilities for Barnes & Noble,
BarnesandNoble.com, and Nook.” Id. at 3
(citing Exs. 1-3).

Even
accepting as true that one of the officers for Barnes &
Noble, Inc. has shared responsibility over Nook Digital, that
fact alone is not sufficient to show a lack of a
“formal separation of the entities.” See
Docket No. 97 at 6; see also Teledyne Ryan Aeronautical
Co. v. Montgomery Ward & Co., 326 F.Supp. 813, 820
(D. Colo. 1971); Technograph Printed Circuits, Ltd. v.
Epsco, Inc., 224 F.Supp. 260, 263 (D.C. Pa. 1963) (where
the courts did not impute the acts of a subsidiary to its
parent corporation for the purpose of venue even though there
was an overlap of directors or officers). Moreover, Nook
Digital provides a sworn affidavit stating that Nook Digital
and Barnes & Noble, Inc. “are separate companies
and maintain all corporate formalities.” Docket No.
95-1 (Ebisike Decl., ¶ 2). The affidavit further states
that Nook Digital and Barnes & Noble “maintain
separate books and records, separate bank accounts and
separate assets.” Id. For the same reasons
stated in the Report, the Court is not persuaded that Blue
Spike has put forth sufficient evidence that Barnes &
Noble, Inc. and Nook Digital acted as a single enterprise
such that Barnes & Noble's presence in this District
should be imputed to Nook Digital for the purpose of
determining venue. See Docket No. 97 at 6.

Blue
Spike's argument that venue is proper because Nook
Digital maintains inventory, advertises and markets, and
receives substantial benefits in this District is similarly
lacking in merit. Docket No. 100 at 4-5. Blue Spike relies
only on evidence specific to Barnes & Noble to
support its assertions, and none of the evidence presented by
Blue Spike points to activities performed by Nook Digital.
Id. (citing to Ex. 5) (emphasis added). To the
contrary, Nook Digital asserts in its affidavits that it
“does not maintain any warehouse, distribution center,
or inventory in Texas.” Docket No. 86-3 (Gluck Decl.,
¶ 3). Blue Spike's arguments are therefore without
merit.

Blue
Spike's second basis for reconsideration is that Nook
Digital made misrepresentations which led to Blue Spike
dismissing Barnes & Noble, Inc. from this action. Docket
No. 100 at 5. As the Magistrate Judge states in his Report,
Blue Spike cites to neither evidence nor authority to support
an allegation of gamesmanship against Nook Digital.
See Dockets No. 97 at 6; 100 at 7 n.3. In any case,
regardless of whether Barnes & Noble, Inc. had remained
as a party in this action, Blue Spike's accusations are
inconsequential because the Court must consider whether venue
is proper with respect to each defendant. Docket No. 97 at 6
(citing to 28 U.S.C. § 1400(b); Magnacoustics, Inc.
v. Resonance Technology Co., No. 97-1247, 1997 WL
592863, at *1 (Fed. Cir. Sept. 25, 1997) (“[A]s firmly
established by judicial decisions, in an action involving
multiple defendants venue and jurisdiction requirements must
be met as to each defendant.”)).

Third,
Blue Spike takes issue with the timing of when Nook Digital
filed its motion to dismiss. Docket No. 100 at 7. Blue Spike
argues that Nook Digital waived its right to oppose venue
because it delayed in filing its motion until the Court ruled
on claim construction. Id. Though Nook Digital could
have filed its Motion more expeditiously, the Court agrees
with the Report that Nook Digital properly preserved its
improper venue defense in its Answer, and filed its Motion
while the case remained in its early stages. Docket No. 97 at
5. Any assertion of improper litigation conduct is
unsupported by authority or evidence.

Finally,
Blue Spike argues that its pending multi-district litigation
request weighs in favor of denying Nook Digital's Motion.
Docket No. 100 at 8 (citing the Report at 7). Blue Spike
ignores the fact that it filed for multi-district litigation
after Nook Digital had already filed its Motion. Regardless,
the Court agrees with the Magistrate Judge that a venue
determination should not be stalled “simply on the
basis that the plaintiff filed a request for multi-district
litigation.” Docket No. 97 at 7.

Having
made a de novo review of the written objections
filed by Plaintiff in response to the Report and
Recommendation, the Court concludes that the findings and
conclusions of the Magistrate Judge are correct and that
Plaintiffs objections are without merit. It is therefore

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;ORDERED
that the Report and Recommendation filed on July 28, 2017 is
ADOPTED in its entirety ...

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